SANTOSH KUMAR SAHU Vs. BASANTI BAI

JUDGEMENT

(1.) The instant appeal has been preferred by the plaintiff against the judgment and decree dtd. 5/10/2010 passed by 9th Additional District Judge (FTC), Raipur in Civil Suit No.41A of 2006.

(2.) Plaintiff/Appellant Santosh Kumar Sahu filed a suit, being Civil Suit No.41A of 2006 before the Trial Court for vacant possession of the suit house and also for damages against the defendants/Respondents. Original defendant 1 Budhram Sahu died during pendency of the civil suit. Defendants 1-v to 1- bZ/Respondents 1 to 6 are legal representatives of deceased Budhram Sahu. Deceased defendant 1 Budhram Sahu and defendant 2 Smt. Motimbai are brother and sister of the father of the plaintiff, namely, Maujiram Sahu. The suit house bearing No.37/458/1 situated at Jawaharlal Nehru Ward No.37, Jorapara, Raipur was owned by Devantinbai, mother of original defendant 1 Budhram Sahu. It was pleaded by the plaintiff that on 21/2/1997 Devantinbai executed a will (Ex.P2) in favour of the plaintiff. On the basis of the said will, after the death of Devantinbai, the plaintiff became owner of the suit house. His name is also mutated in the records of Municipal Corporation, Raipur. It was further pleaded that deceased defendant 1 Budhram Sahu was residing in another house situated at Jorapara itself. In the lifetime of Devantinbai itself, deceased defendant 1 Budhram Sahu was residing in the suit house with the consent of Devantinbai. After the death of Devantinbai, the plaintiff became owner of the suit house on the basis of the will (Ex.P2). Thereafter, the plaintiff demanded vacant possession of the suit house from deceased defendant 1 Budhram Sahu. Deceased defendant 1 Budhram Sahu requested that the plaintiff should provide him the suit house on rent @ Rs.500.00 per month. Thereafter, with the consent of the plaintiff, deceased defendant 1 Budhram Sahu was residing in the suit house as a licensee. Earlier, a suit was filed by the present plaintiff himself against deceased defendant 1 Budhram Sahu for eviction on the basis of relationship of landlord and tenant between him and Budhram Sahu. The suit was registered as Civil Suit No.542A of 2004, which was dismissed vide judgment and decree dtd. 10/2/2006 (Ex.P18 and P19). After disposal of the suit, the plaintiff sent a legal notice (Ex.P14) to Budhram Sahu. Reply was sent by Budhram Sahu vide Ex.P17. Since Budhram Sahu did not vacate the suit house nor did he give possession of the suit house to the plaintiff, the instant suit has been preferred by the plaintiff for vacant possession of the suit house and for damages.

(3.) Deceased defendant 1 Budhram Sahu filed his written statement in which he pleaded that the suit house was made by his father Pardeshi Ram Sahu. The suit house is his ancestral property. There was no partition made between Devantinbai and other legal representatives of Pardeshi Ram Sahu. It was further pleaded that the will dtd. 21/2/1997 (Ex.P2) is a forged document. Devantinbai had no right to execute the said will as she was not an absolute owner of the suit house. It was further pleaded that in the previous suit, i.e., Civil Suit No.542A of 2004, the competent Court did not find the will dtd. 21/2/1997 duly proved, therefore, the subsequent suit on the basis of the same filed by the plaintiff is barred under the provisions of Sec. 11 of the Code of Civil Procedure. It was further pleaded that the plaintiff has also not properly valued the suit and not affixed proper Court fee. Defendant 2 Smt. Motimbai also filed her written statement separately in which she supported the averments made by the plaintiff in his plaint.